Artist Image Upload Agreement

The Artist Image Upload Agreement was last updated on Dec 20, 2012.
1.1.
The www.Crestock.com website (the "Crestock Website") is a searchable collection of images provided by Crestock Corporation ("Crestock") to users of stock images subject to the payment of licensing fees.
1.2.
You are first required to register on the Crestock Website as a "Member" in order to enter into this agreement to upload Images for licensing by Crestock.
1.3.
This document governs the terms and conditions under which you may upload Images and forms a legal agreement (the "Artist Agreement") between Crestock and you.
1.4.
This Artist Agreement is in addition to the Website Terms & Conditions and the Membership Agreement that you have previously accepted. In the event of any inconsistency between this Artist Agreement and the Membership Agreement and/or the Website Terms & Conditions (both of which are hereby incorporated into this Artist Agreement), the terms of this Artist Agreement will prevail.
1.5.
You are required to read this Artist Agreement and accept all of its provisions by clicking on the "I have read and agree..." box before you may upload any Image to the Crestock Website. By so doing, you confirm that you will abide by and be bound by this Artist Agreement.
2.1.
Image Definitions
2.1.1.
"Image" means a picture or image created by you through photography, computer imaging, drawing, painting or any other form of illustration or depiction which you desire to market commercially through Crestock as contemplated in this Artist Agreement.
2.1.2.
"Accepted Image" means an Image delivered by you to Crestock and edited and accepted by Crestock.
2.2.
Other Definitions
2.2.1.
"Image License Agreement" means the agreement available at the Internet URL www.crestock.com/legal/image-license-agreement.aspx which governs the commercial licensing of images by Crestock and which may be modified from time-to-time at the sole discretion of Crestock.
2.2.2.
"License" whether used as a verb, gerund or noun, means the act whereby Crestock grants a person the right to reproduce an Accepted Image and the resulting record or document detailing such reproduction right.
2.2.3.
"Licensing Fee" means a fee charged by Crestock to any person for the right to reproduce an Accepted Image.
2.2.4.
"Masterfile" means Masterfile Corporation, and its affiliates and licensees.
2.2.5.
"Masterfile Website" and "Masterfile Websites" means, individually and collectively, the website of Masterfile at http://www.masterfile.com and the websites of its affiliates and licensees.
2.2.6.
The "Parties" means you and Crestock.
2.2.7.
"Promotional Media" means (without limitation), advertising media, printed publications, press releases and any other promotional materials prepared by or on behalf of Crestock for the purpose of advertising or promoting the Licensing of Accepted Images;
2.2.8.
"Royalty" means a percentage of Licensing Fees payable by Crestock to you under Section 13;
You hereby warrant to Crestock that:
3.1.
You are the sole and exclusive owner of all Images delivered to Crestock and of all right, title and interest (including copyright) in them;
3.2.
You have the exclusive right to sell or license each of the Images;
3.3.
The Images are original creations by you and do not infringe on the copyright and, subject to Section 5.4 [re model and property releases] do not infringe on any other rights of any other person;
3.4.
The Images do not include elements that are the copyright of another person, unless such elements
3.4.1.
are permitted by the copyright owner to be included in other copyrighted works; and
3.4.2.
would be deemed by an industry professional to be either insignificant or unrecognizable within the respective Image;
3.5.
All necessary permissions and releases have been obtained in order to permit the Licensing of the Images and their subsequent reproduction and publication, as contemplated in this Artist Agreement, unless otherwise indicated in writing at the time of their submission to Crestock;
3.6.
You have not granted to any other person any right to or interest in any Image which conflicts with any of the rights granted to Crestock under this Artist Agreement; and
3.7.
By entering into this Artist Agreement you are not in breach of any prior or extant representation agreement or licensing agreement with any stock image library, licensee, representative, agency, or other person in the world.
4.1.
During the term of this Artist Agreement, you grant to Crestock a non-exclusive worldwide right to License and distribute Accepted Images on the terms set forth in this Artist Agreement and the Image License Agreement and as may be modified for certain clients and market segments by Crestock in its sole discretion if it considers such modification to be of mutual advantage to the Parties.
4.2.
You waive all "moral rights" (as defined in the Canadian Copyright Act) for all Accepted Images and all similar rights existing under the applicable law of any jurisdiction in which any Accepted Image is Licensed. Nothing herein will permit Crestock to knowingly License any Image for use in a defamatory manner or contrary to reasonable business ethics, but Crestock cannot guarantee that its clients will not violate the terms of Licensing established by Crestock.
5.1.
You will deliver Images to Crestock at your sole expense during the term of this Artist Agreement.
5.1.1.
You will edit Images carefully to eliminate technically deficient Images.
5.1.2.
You will edit Images so as to provide a complete representation of the subject matter presented while reducing the selection to provide a reasonable variety of Images consistent with the editing direction provided by Crestock in its instructions and tutorials to contributing artists.
5.2.
You will submit Images to Crestock in accordance with Crestock's then current submission policy guidelines.
5.3.
Captions: You will provide all caption information reasonably required by Crestock in the manner required by Crestock, to provide a clear association between the caption information and the associated Image. You will be responsible for the accuracy and spelling of the information in such captions. You acknowledge that proper caption information is an important aid to clients of Crestock when they review images for possible licensing.
5.4.
Model & Property Releases: You will deliver signed model releases and/or property releases, where relevant, to Crestock upon delivery of the respective Images, such releases to be in a form approved by Crestock.
5.4.1.
Crestock generally will not accept Images of identifiable people without model releases, nor will it accept Images of private properties without property releases.
6.1.
Crestock is entitled, in its sole discretion, to accept or decline any Images.
6.2.
Crestock may remove previously Accepted Images from the Crestock Website and direct Masterfile to remove them from the Masterfile Websites without notice to you if it determines that such Accepted Images have become inappropriate for Crestock's needs.
6.3.
It is your responsibility to advise Crestock in writing of any error in the information displayed with respect to Accepted Images on the Crestock Website without delay.
6.4.
Due to the high volumes of images that are submitted to Crestock in the normal course of business, Crestock will not be able to provide any personal consultation or guidance to you with respect to declined Images.
6.5.
Crestock will erase digital files, as may be applicable, during the term of this Artist Agreement but it will not return nor provide any digital files to you at any time during the term of this Artist Agreement or following its termination.
7.1.
Crestock will be entitled to reproduce Accepted Images in Promotional Media (including, without limitation, on the home page of the Crestock Website and/or permit them to be used on any Masterfile Website), without payment to you. However, Crestock will not provide any Accepted Image to any client free of charge without your prior written consent.
7.2.
There will be no charge to you for any costs associated with including Accepted Images in Promotional Media.
7.3.
All Accepted Images used in Promotional Media will be accompanied by a credit line naming you in the manner supplied by you in the metadata of the respective Accepted Image, wherever this is deemed practical and appropriate by Crestock.
8.1.
Crestock's rights herein will include the right to publish Accepted Images on the Crestock Website, the Masterfile Websites, and any auxiliary websites, linked websites, portals, meta-search engines, and other digital delivery media and applications that Crestock deems to be advantageous to the Parties.
8.2.
Masterfile will receive Accepted Images from Crestock under License from Crestock for publication on the Masterfile Websites. You will only be required to upload Images to the Crestock Website. The Crestock Website will be the control point for all of your interactions with Crestock and thereby, Masterfile.
8.3.
All Accepted Images published on the Crestock Website and the Masterfile Websites will be accompanied in their enlarged form and in their downloadable form by a credit line naming you in the manner supplied by you in the metadata with the respective Accepted Image.
8.4.
There will be no credit line given for Accepted Images used in "thumbnail" versions, as static page illustrations, or in other applications where it may be impractical or inappropriate for Crestock to include a credit line. However, all such Accepted Images will be linked to their respective enlarged form in which credit is given.
8.5.
The information accompanying each Accepted Image on the Crestock Website will serve as further confirmation of the caption information and release information supplied by you to Crestock. It is your responsibility to advise Crestock in writing of any error in such information without delay.
8.6.
Crestock will take reasonable precautions in preparing, presenting and managing the Crestock Website in an effort to discourage the unauthorized use of Accepted Images. However, you acknowledge that, given the public nature of the Internet and other electronic media and Crestock's need to show images to their best advantage on the Crestock Website, Crestock can give no assurance that such unauthorized use of Accepted Images by other parties will not occur. You accordingly agree that Crestock will not be liable or responsible for any such copyright infringement of any Accepted Image by any other person, and you agree not to assert any claim against Crestock in respect thereof.
8.7.
Without limiting any other rights or remedies available to Crestock, you agree that Crestock will be entitled to remove any Accepted Image from the Crestock Website and to instruct Masterfile to remove it from the Masterfile Websites if it receives any notice from any other person that such Accepted Image infringes the copyright or any other intellectual property right of such person. Crestock will inform you of any such notice and removal in writing so that you may defend your claim of ownership but the decision as to whether to reinstate the Accepted Image, or not, will be at the sole discretion of Crestock.
9.1.
Crestock will at all times act in good faith and will use all reasonable commercial efforts, in accordance with its practices from time to time, to License the Accepted Images in such ways and on such terms and conditions as it deems to be of best advantage to the Parties, as further detailed in the Image License Agreement.
9.2.
You confirm that you have read, understand and agree with all the provisions of the Image License Agreement as they (by inference) govern the Licensing of Accepted Images.
9.3.
The terms of all License agreements with clients relating to the Accepted Images will be at Crestock's sole discretion, without the need for prior consultation with you.
9.4.
In some media, Crestock may request that a credit line be given for the use of Accepted Images naming you in the manner supplied by you in the metadata with the respective Accepted Image in the form "© Your Name / Crestock". If you do not include your name or a copyright notice in the metadata of any Accepted Image, then Crestock will request a credit line in the form "© Crestock".
10.1.
Crestock will include Accepted Images in various subscription plans whereby Crestock clients may use a predetermined number of images (including Accepted Images) against a fixed fee for the duration of the subscription. Crestock will track and identify any Accepted Images that are downloaded by any subscriber.
11.1.
Crestock will deliver Accepted Images to Masterfile for licensing by Masterfile to its clientele through the Masterfile Websites.
11.2.
Due to Masterfile's content update scheduling, the appearance of Accepted Images on the Masterfile Websites will occur a month or more following their appearance on the Crestock Website.
11.3.
Licensing by Masterfile will be in addition to the Licensing activities of Crestock through the Crestock Website and is intended to increase the global revenues of Crestock's contributors.
11.4.
Masterfile will remit payments to Crestock on a monthly basis after Masterfile has received payment from its clients.
11.5.
The Royalty payable to you by Crestock for Accepted Images licensed by Masterfile will be:
11.5.1.
For Single Image Licenses, calculated on the licensing fee charged by Masterfile to its clients, such fee to be greater than or equal to the "Pay & Go" Licensing Fee published on the Crestock Website for the equivalent file size; and
11.5.2.
For Images Downloaded Through Subscription, calculated according to Section 13.
12.1.
Crestock will maintain an online, passworded account for your personal use (your "Crestock Account") which will track all downloads of Licensed Images. You will have access to your Crestock Account 24 hours per day / 7 days per week, except during scheduled maintenance of Crestock's online systems or during unscheduled emergency maintenance.
12.2.
Your Crestock Account will display Crestock's code numbers for the respective Licensed Images, a thumbnail copy of each Licensed Image, the date of each transaction and the amount payable to you pursuant to Section 13. In addition, your Crestock Account will provide a visual record of all your Accepted Images, the editing status of Images you have uploaded for inspection, a summary of your download history, records of Royalty payments made to you and other sales overviews and statistics to help you monitor your status with Crestock.
13.1.
Crestock will pay you a Royalty calculated according to the following table:
Aggregate Number of Downloads
1-249 250-999 1,000-4,999 5,000-10,000 10,000+
Royalty Rate
Single Image License 20% 25% 30% 35% 40%
Image Downloaded Through Subscription $0.25 $0.25 $0.30 $0.35 $0.40
13.1.1.
The "Aggregate Number of Downloads" is the number of Accepted Images Licensed by clients of Crestock (including licenses reported by Masterfile to Crestock). The count of downloads is cumulative and will include both Accepted Images Licensed with Crestock Credits and Accepted Images downloaded through subscriptions retroactive to the date of your first paid downloads with Crestock.
13.1.2.
The "Royalty Rate" for "Single Image Licenses" is calculated on the fee paid to Crestock by the respective client for such License; and
13.1.3.
The "Royalty Rate" for "Images Downloaded Through Subscriptions" is a fixed fee payable to you each time an Accepted Image is downloaded through a Subscription.
13.1.4.
Royalty payments will be calculated net of any foreign withholding taxes that may be withheld from amounts payable to Crestock with respect to the licensing of any Accepted Image.
13.1.5.
To the extent that this Artist Agreement replaces prior agreements between you and Crestock, the Royalty Rate calculated herein will not be retroactive.
The remainder of the sums collected will be retained by Crestock as its fee for services rendered here­under.
13.2.
Method of Royalty payment:
13.2.1.
In response to a request from you made online via your Crestock Account, and provided that the cumulative Royalties balance in your Crestock Account exceeds fifty United States Dollars (U.S. $50.00), Crestock will issue payment to you on or about the first (1st) or the fifteenth (15th) day of any calendar month (or the first business day following the 1st or the 15th). Such request must be received by Crestock at least five (5) business days prior to the respective payout date to ensure timely payment to you.
13.2.1.1.
Your Royalty payment will be issued in United States Dollars (U.S. $) to the PayPal (www.Paypal.com) or Moneybookers/Skrill (www.moneybookers.com) e-mail address you specify when submitting a payout request through your Crestock Account.
13.3.
If a transaction is credited or cancelled, in whole or in part (including if such License is partially credited as part of a client incentive rebate program), then Crestock will report such credit or cancellation to you in your Crestock Account. If you have already been paid a Royalty for such credited or cancelled License, you will be obligated to reimburse Crestock the amount of such Royalty and Crestock will be entitled to deduct that amount or applicable portion thereof (in the case of a partial credit or cancellation) from Royalty payments to you.
13.4.
If Crestock engages a collection agency and/or legal counsel to pursue a delinquent account, then Crestock will be entitled to deduct the collection and/or legal costs incurred by Crestock from the amount collected (if any) and the Royalty payable to you will be calculated on the net amount so collected. If such costs in aggregate exceed the total amount collected, or if no amounts are collected, Crestock will be solely responsible for the excess costs.
14.1.
Crestock will have no liability to you whatsoever due to any down time of the Crestock Website or any Masterfile Website.
14.2.
Crestock will have no liability to you whatsoever due to your inability to access your Crestock Account at any time and for any reason provided that, if such inaccessibility is due to technical issues for which Crestock is responsible, such inaccessibility will not continue for more than seven (7) consecutive days.
15.1.
Crestock will indemnify and hold you harmless from and against all losses, claims, actions, causes of action, costs and expenses (including reasonable legal costs) suffered by reason of any breach by Crestock of any warranty, representation or agreement made on its part in this Artist Agreement.
15.2.
You will indemnify and hold harmless Crestock from and against all losses, claims, actions, causes of action, costs and expenses (including reasonable legal costs) suffered by reason of any breach by you of any warranty, representation or agreement made on your part in this Artist Agreement.
15.3.
Additionally, you represent and warrant to Crestock as follows:
15.3.1.
No malicious content: all Images or any other digital content which you deliver to Crestock will be free of any virus, worm, or other device or mechanism that could be used to modify, delete, damage, interfere with or disable the Crestock Website or any of its content or any other computer system or hardware in any way.
15.3.2.
No self-dealing. You will not, individually or in collusion with any other person(s), license any Accepted Image from Crestock (including within a subscription plan) so as to influence your search rankings or the apparent popularity of any Accepted Image, or to inflate the funds payable to you by Crestock or to otherwise undermine the legitimate commercial intent of this Artist Agreement. Without limiting any other rights or remedies available to Crestock herein, if you breach this Section 15.3.2, Crestock may terminate this Artist Agreement and/or any membership privileges or services provided to you by Crestock without compensation to you and you agree to forfeit any monies obtained by you or payable to you by Crestock in connection with such misconduct.
15.4.
Without limiting any other right or remedy available to Crestock, you agree that Crestock will have the right, without prior notice to you, to immediately remove any or all of the Accepted Images from the Crestock Website and to instruct Masterfile to remove them from the Masterfile Websites and/or the Promotional Media during any remedy (cure) period referenced in this Artist Agreement and/or if Crestock gives summary notice of termination in accordance with this Artist Agreement and/or if, in Crestock's reasonable opinion, such removal is necessary in order to mitigate potential damages or liability. You further agree that Crestock will have no liability or obligation to you (and/or any other person) in connection with such removal.
16.1.
This Artist Agreement will remain in force until terminated by either Party, such termination to be effective upon sixty (60) days prior written notice unless earlier terminated in accordance with the provisions of this Artist Agreement.
17.1.
Either Party will have the right to give summary notice of termination if the other Party commits any breach of this Artist Agreement and, in the case of a breach capable of remedy, such breach continues for a period of thirty (30) days after the defaulting Party has been given written notice requiring it to remedy such breach.
17.2.
Accepted Images will be removed from the Crestock Website and the Masterfile Websites within sixty (60) days following the effective date of termination.
17.3.
Notwithstanding Section 17.2:
17.3.1.
After termination, Crestock will conclude the Licensing of any Accepted Images that were selected by its clients prior to the removal of such Accepted Images from the Crestock Website and the Masterfile Websites, subject to all the terms of this Artist Agreement.
17.3.2.
In order to allow Crestock to conclude or renew any permitted Licensing of Accepted Images following termination, Crestock will retain electronic or digital archive copies of Accepted Images on its servers (or other active media to enable download) following termination, but will not promote, publish or offer such Accepted Images to any other party for any other purposes whatsoever. For the avoidance of doubt, such Accepted Images will be maintained in a location or sector that will prevent unauthorized access or unintentional display or licensing by any other party.
17.3.3.
You agree that the licensing of Accepted Images may result in payments to Crestock after termination, and that Crestock will be entitled to retain its regular fee from such payments and will remit any Royalty due to you pursuant to Section 13.1.3.
17.4.
Notwithstanding the minimum threshold for payment of Royalties in Section 13.2.1, upon termination of this Artist Agreement, provided that the balance in your account is greater than $10.00, all Royalty amounts outstanding in your Crestock Account will be paid to you by Crestock within thirty (30) days following termination.
17.5.
If termination is due to a material breach by you of this Artist Agreement then, without limiting any other rights or remedies available to Crestock, Crestock will retain any Royalties otherwise payable to you hereunder as liquidated damages.
17.6.
You agree that Crestock will erase digital files, as applicable, following termination but it will not return nor provide any digital files to you following termination.
18.1.
This Artist Agreement may be amended at any time by Crestock by a notice posted to your Crestock Account (the "Notice"). The date any such Notice is posted to your Crestock Account is referred to herein as the "Notice Date".
18.2.
The Notice will include an explanation of the changes that have been made and/or a hyperlink to a summary of the principal changes.
18.3.
If you disagree with any such change, you may terminate this Artist Agreement retroactive to the Notice Date provided that your notice of termination is received by Crestock within thirty (30) days following the Notice Date. After such 30-day period the amended Artist Agreement will be binding on you.
19.1.
The headings contained in this Artist Agreement and its table of contents are inserted for convenience of reference only and do not affect its terms and conditions in any way.
19.2.
This Artist Agreement does not constitute an employment or partnership agreement between Crestock and you. The Parties agree that you are an independent contractor.
19.3.
No trade custom or usage will affect this Artist Agreement or its terms and conditions.
19.4.
This Artist Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
19.5.
The Parties agree that all disputes arising out of or in connection with this Artist Agreement that cannot be amicably settled, will be referred to and finally resolved by arbitration conducted in accordance with the provisions of the Arbitration Act 1991 (Ontario) (if you are resident in Canada) or the International Commercial Arbitration Act (Ontario) (if you are resident outside of Canada).
19.6.
Either Party's failure to enforce or insist that the other Party comply with any term of this Artist Agreement is not a waiver of the first Party's rights. The rights and remedies of each of the Parties are separate and in addition to each other. The choice of one does not prevent a Party from using any other.
19.7.
If any provision of this Artist Agreement violates any applicable law and is unenforceable, it will be severed and the balance hereof will be interpreted and enforced in such manner as best gives effect to the intention of the Parties.
19.8.
You may not assign this Artist Agreement nor any of your rights hereunder to any person without the prior written consent of Crestock.
19.9.
Crestock may freely assign this Artist Agreement or any of its rights under this Artist Agreement to any of its subsidiaries or affiliates. If all or substantially all of the assets of Crestock are or are to be acquired by a third party, the benefit of this Artist Agreement and all rights of Crestock hereunder may be assigned to that third party by Crestock and that third party will be bound by all the terms and conditions of this Artist Agreement. No such assignment will relieve Crestock of any of its covenants and obligations under this Artist Agreement. You hereby consent to any such assignment.
19.10.
This Artist Agreement will be binding on and enure to the benefit of you and Crestock and your and Crestock's respective heirs, executors, administrators, successors and permitted assigns.
19.11.
Any notice required or permitted to be given hereunder will only be given:
19.11.1.
From you to Crestock: if delivered by hand, by courier, by e-mail acknowledged by the recipient or by registered mail, addressed as follows:
Crestock Corporation
3 Concorde Gate
4th Floor
Toronto, Ontario, Canada M3C 3N7
Attention: General Counsel
E-mail: legal@crestock.com
19.11.2.
From Crestock to you: by notice posted to your Crestock Account pursuant to Section 18 or (at Crestock's option) if delivered by e-mail to the e-mail address registered in your Crestock account.
19.12.
Any prior image upload agreement between you and Creative Visual Group AS ("CVG"), the former owners of Crestock, with respect to the Licensing of your images by Crestock was assigned by CVG to Crestock as of July 1, 2010, and you hereby agree to such assignment.
19.13.
This Artist Agreement incorporates the entire understanding of the Parties and supersedes all prior agreements between the Parties pertaining to the subject matter of this Artist Agreement, written or oral, and such prior agreements (if any) are hereby canceled. For the avoidance of doubt, this Artist Agreement supersedes, replaces and cancels any agreement with you assigned by CVG to Crestock pursuant to Section 19.12.
You acknowledge and confirm to Crestock that:
20.1.
you have read and understand this Artist Agreement;
20.2.
you have had the opportunity to seek independent legal counsel with respect to this Artist Agreement; and
20.3.
you agree to be bound by its terms and conditions.